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    Magaya v. Magaya: Customary Law and Human Rights

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    Panashe Zowa
    This document discusses the case of Magaya v. Magaya regarding customary law and human rights. It summarizes that the appellant, Venia Magaya, was the eldest daughter seeking to be designated heir under customary law, which only allows male heirs. The magistrate's court instead appointed the second son as heir. The document then examines sources of customary law and discusses how the constitution provides an exception for customary law regarding matters like inheritance. It also analyzes whether certain cases should be characterized as customary law or common law.

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    Magaya v. Magaya: Customary Law and Human Rights

    Uploaded by

    Panashe Zowa
    50 views10 pages
    This document discusses the case of Magaya v. Magaya regarding customary law and human rights. It summarizes that the appellant, Venia Magaya, was the eldest daughter seeking to be designated heir under customary law, which only allows male heirs. The magistrate's court instead appointed the second son as heir. The document then examines sources of customary law and discusses how the constitution provides an exception for customary law regarding matters like inheritance. It also analyzes whether certain cases should be characterized as customary law or common law.

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    Magaya v Magaya

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    Magaya+v+Magaya

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    This document discusses the case of Magaya v. Magaya regarding customary law and human rights. It summarizes that the appellant, Venia Magaya, was the eldest daughter seeking to be designated heir under customary law, which only allows male heirs. The magistrate's court instead appointed the second son as heir. The document then examines sources of customary law and discusses how the constitution provides an exception for customary law regarding matters like inheritance. It also analyzes whether certain cases should be characterized as customary law or common law.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    50 views10 pages

    Magaya v. Magaya: Customary Law and Human Rights

    Uploaded by

    Panashe Zowa
    This document discusses the case of Magaya v. Magaya regarding customary law and human rights. It summarizes that the appellant, Venia Magaya, was the eldest daughter seeking to be designated heir under customary law, which only allows male heirs. The magistrate's court instead appointed the second son as heir. The document then examines sources of customary law and discusses how the constitution provides an exception for customary law regarding matters like inheritance. It also analyzes whether certain cases should be characterized as customary law or common law.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 10

    Magaya v.

    Magaya

    Customary Law
    And
    Human Rights
    Magaya v. Magaya
    „ Facts:
    „ Appellant, Venia Magaya, was daughter
    and eldest child of deceased by his first
    marriage. Respondent was the second
    son by the second marriage. Deceased
    person’s first son also by second marriage
    declined heirship on grounds of inability to
    support family.
    Continued

    „ Thus, appellant applied to be designated heir


    on grounds that only male issues are entitled
    under customary law to be nominated heirs.
    Community Court appointed Appellant but
    Respondent appealed on ground that not all
    family members had opportunity to attend trial of
    case. Magistrate’s Court reversed and appointed
    Respondent as heir.
    „ Source of Customary Law:
    „ Muchechetere JA in his judgment
    quotes with approval a text from
    Bennett’s book: Human Rights and
    Customary law, and a text from
    “African Law and Custom in
    Rhodesia” by Goldin and Gelfand, to
    the effect, broadly, that in both Shona
    and Ndebele customary law the
    deceased’s estate devolves on the
    male heir, often the eldest son.
    Continued

    The heir inherits the “status” and


    responsibilities of the deceased, to
    support the surviving family dependents,
    under Shona Law, but inherits the
    property in his personal capacity under
    Ndebele customary law.
    „ Justice also cites numerous court
    decisions in support of the rule.
    Human Rights in Constitution

    „ Theequal protection clause in the


    Constitution, Section 23, is
    subject to an African Customary
    Law exception stating:
    „ 23(3) Nothing contained in any law shall
    be held to be in contravention of
    subsection (1)(a) to the extent that the law
    in question relates to any of the following
    matters – (a) adoption, marriage, divorce,
    burial, devolution of property on death or
    other matters of personal law; (b) the
    application of African customary law in any
    case involving Africans or an African and
    one or more persons who are not Africans
    where such persons have consented to
    the application of African customary law in
    that case ”
    Characterization

    „ Customary Law or Common Law?


    „ In Katekwe v. Muchabaiwa, Dumbutshena
    CJ quoted with approval the decision in
    Bull v. Tylor, decided on basis of Common
    Law, that the action of Seduction is an
    action for recovery of damages by the
    seduced female for loss, inter alia, of
    chances of a successful marriage.
    Continued

    „ In Magaya v. Magaya, Muchechetere JA


    ruled that the action among Africans is at
    Customary Law and is an by the guardian
    or parent of the seduced female (with her
    consent) for damages for loss of
    Lobola/roora
    Evolution or Revolution?
    „ In Katekwe, Dumbutshena CJ held that
    the Majority Act had the effect on
    Customary Law of abolishing the
    requirements for Lobola/Roora, unless the
    intended bride allows the father to ask for
    it.
    „ Muchechetera JA in Magaya v. Magaya
    disagreed.

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